Voting rights case settled, but legal costs question isn't

Group working for tribes: Counties, state should pay

Aug. 24, 2013

Marty Jackley

Written by

An organization that lobbies for Indian voting rights is denouncing a decision by a lawyer for Fall River and Shannon counties to seek court costs against 25 Oglala Sioux Tribe members.

The 25 plaintiffs sued the counties and the state last year, arguing they didn’t have equal opportunity to vote because Shannon County lacked early voting and voter registration satellite office, unlike other counties. Instead, residents in the mostly Native American county had an abbreviated satellite office or they had to drive to Fall River County, which administers elections for Shannon County.

Many Native Americans don’t have a car.

But a federal judge dismissed the lawsuit earlier this month after the state agreed to provide money for early voting satellite offices in both Shannon and Todd counties through 2018 for the full 46 days prescribed by state law. In dismissing the lawsuit, Judge Karen Schreier said that because of the agreement, the plaintiffs did not face imminent harm.

On the face of it, the lawsuit forced the state and counties to provide equal access to early voting, at least through the 2018 general election. But because it was dismissed, the counties and state declared themselves the prevailing parties. Under federal rules, a prevailing party can be awarded costs associated with some aspects of the litigation.

Earlier this week, Sara Frankenstein, a Rapid City lawyer representing the counties, filed for costs, amounting to more than $6,000. The Indian voting rights group Four Directions, which paid for the lawsuit, replied with a letter from Executive Director O.J. Semans that went to many of the state’s top elected officials, asking them to denounce the effort to collect costs against 25 impoverished Indians.

Four Directions spokesman Bret Healy sees the move to impose costs on the plaintiffs as an effort to deter future lawsuits regarding equal voting in Indian Country. If impoverished Indians have to pay costs to force equal voting rights, they won’t be inclined to bring litigation in the future.

(Page 2 of 2)

“This is intimidation, sanctioned by the state, pure and simple,” Healy said.

But Frankenstein said that filing for costs is commonplace in federal litigation.

“It always happens,” she said. “It’s not something that anybody does to be vindictive or send a message.”

Semans’ letter went to state lawmakers and Gov. Dennis Daugaard. Tony Venhuizen, Daugaard’s director of policy and communications, deferred comment to Attorney General Marty Jackley.

In an emailed statement, Jackley said: “Under federal law, a prevailing party is permitted to request the court for certain allowable costs. The county defendants have made a request, and if there is an objection the federal court will determine whether and to what extent costs may be assessed.”

In addition, Semans sent a letter to the board of directors for the South Dakota Public Assurance Alliance, the insurance company that covered the costs of the lawsuit for the counties. The members of the assurance include cities and counties, and Semans also plans to reach out to local elected officials who are members of the assurance, including Sioux Falls Mayor Mike Huether.

“If you go to court, and you don’t win, you may have to pay the freight,” said Roger Baron, a law professor at the University of South Dakota School of Law said. But this case, he added, is different.

The state agreed to provide early voting satellite offices only after the lawsuit was filed, and it’s unclear who actually is the prevailing party.

“In cases such as this one, where there isn’t a clear winner and clear loser, it is possible that the court may find neither side is the prevailing party, or it could even decide that the plaintiffs, not the defendants, are the prevailing parties,” Baron said.

Regardless, despite the fact that the 25 plaintiffs sued for an early voting station, none of them voted in last year’s primary election, and only three voted in the general election, even as the state paid for a 46-day early voting station. Those who voted did so on Election Day at their regular polling places.

“What that tells me, the plaintiffs — the named people — are not the thrust of the lawsuit,” Frankenstein said.